Don't let retailers pull bait-and-switch tactic with merchandise

AP file photo

This week's question comes from Greta P. from the Sunset, who asks:

“I saw an advertisement in the paper from a very large retailer advertising a television I wanted. I had been doing my homework as to how much these TVs were going for and this was a really good price. So I decided I would go to the store and buy a TV for me and one for my brother for Christmas. When I got to the store, they said that they were out of that model but had another model, from a different manufacturer, for just a little more money. I didn't think that brand was as good. I asked them to give me a rain check so I could get the TV I wanted at it advertised price. They told me that they weren't going to get any more and tried to pressure me to buy the other TV. Isn't there a law saying that they have to sell me the TV if they advertise it for that price?”

Before I answer Greta's question I want to say hello to Phelicia, who works the cash register at Marshalls. I was shopping there with my children and she not only said she read this column, she could recite the last topic almost verbatim! She said “I feel that you fight for the underdog.” Well, Phelicia (she told me Felicia with a Ph), I really appreciate not only that you read The San Francisco Examiner and my article, thank you for getting the sense of what and who I stand for.

A: Greta, what you describe is potentially an unlawful action called a bait-and-switch scheme.

California Code of Regulations Title 4 Section 1304.1 states: “The term 'Bait and Switch Advertising' means an alluring but insincere offer to sell a product or service which the advertiser in truth does not intend or want to sell. The purpose thereof is to switch consumers from buying the advertised merchandise in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser.

“Bait and switch advertising of any article subject to the provisions of the Home Furnishings Act shall be deemed to be false and misleading. Practices which shall be considered as evidence of unlawful bait and switch advertising include but are not limited to the following: (a) Refusal to show the product advertised; (b) Disparagement in any respect of the advertised product or the terms of sale; (c) Failure to have available at all outlets listed in the advertisement sufficient quantities of the product to meet reasonable anticipated demands; (d) Refusal to take orders for the advertised merchandise for delivery within a reasonable period; (e) Showing or demonstrating a defective product unusable or impractical for the purposes implied in the advertisement; (f) Accepting a deposit for the product and then switching the purchaser to a higher priced item; and (g) Failure to make deliveries within a reasonable time or to make a refund.”

Section 1383.2 sets forth fines for false and misleading advertising: For a bait-and-switch offense the fine may range from $200 to $2,000. California Civil Code Section 1770, the Consumer Legal Remedies Act, also makes it unlawful to advertise goods or services with intent not to sell them as advertised. Section 1770 also makes it unlawful to advertise goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limited quantity. The organization that would investigate, cite and enforce such a penalty is the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation. The bureau's telephone number is (916) 999-2041.

Since you also mentioned your desire to purchase more than one TV at the low advertised price, I thought I would address another consumer protection: the right of a consumer to purchase as many units of a product at the advertised price as they wish unless the advertiser meets certain legal requirements. The California Business and Professions Code Section 17500.5 states that it is unlawful for any person, firm, corporation or association to falsely represent by advertisement the quantity of any product that will be sold to any one customer in a single transaction and willfully or negligently to fail to include in such advertisement a statement that there is any limit upon the quantity of any article so advertised that is sold or offered for sale to any one customer in a single transaction. Any business that engages in such conduct shall be liable to each person so induced and refused, for the losses and expenses incurred, and the sum of $50 in addition thereto.

Take this article back to the retailer and show the managers that you know the law. Tell them you want the two TVs as advertised or you will turn them in to the bureau. If they continue to refuse to act fairly, then call Sacramento and report them. If they are spending the money on advertising you can rest assured you are not the only one who was lured in by the scheme.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

Bureau of Electronic and Appliance RepairCalifornia Code of RegulationsChristopher DolanFeaturesHome Furnishings ActHome Furnishings and Thermal Insulation

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